Vallery v. Brown et al

Filing 116

ORDER granting in part and denying in part Plaintiff's 110 Motion for Discovery-related relief. The Defendants are to serve Vallery with supplemental responses to document requests, and, where appropriate, include statements under oath no late r than December 2, 2011. (Motion hearing set for 1/9/2012 10:00 AM before Magistrate Judge Ruben B. Brooks.) Plaintiff may file a comprehensive supplemental opposition by December 15, 2011. The Defendants may reply to Vallery's Opposition (ECF No. 79 ) and any supplemental opposition by December 30, 2011. Signed by Magistrate Judge Ruben B. Brooks on 11/23/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAYNARD VALLERY,

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Plaintiff,

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v.
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J. BROWN, et al.,
Defendants.

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Civil No. 08cv00095 DMS(RBB)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR DISCOVERY-RELATED
RELIEF [ECF NO. 110]

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Vallery’s Motion for Discovery-Related Relief was filed nunc

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pro tunc to October 28, 2011 [ECF No. 110].

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order directing the Defendants to (1) disclose missing pages from

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the produced documents, (2) conduct a more diligent document

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search, and (3) search for the correct classes of documents.

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Vallery also seeks an order requiring any CDCR employee to (1) file

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a declaration identifying policies regarding the destruction of the

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documents sought and (2) file a declaration establishing whether

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any documents were destroyed; Plaintiff requests that the person

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who conducted the searches document the steps taken in doing so.

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(Mot. Disc. Related Relief 2-3, ECF No. 110.)

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Plaintiff seeks an

The Plaintiff also

08cv00095 DMS(RBB)

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moves the Court for an “independent judicial determination of

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whether Defendants’ document searches and reviews were diligent.”

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(Id. at 3.)

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On November 18, 2011, Defendants’ Opposition to Plaintiff’s

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Motion for Discovery-Related Relief was filed, along with the

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Declaration of John P. Walters and eight exhibits in support [ECF

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No. 115].

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denied because it is based, in part, on Vallery’s misunderstanding

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of the exhibits and Court orders, and because Defendants properly

There, the Defendants argue that the Motion should be

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complied with the Court orders and discovery requests.

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Opp’n 2, ECF No. 115.)

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(Defs.’

The Court has considered the arguments raised in Vallery’s

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Motion and Defendants’ Opposition.

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DENIES in part Plaintiff’s Motion for Discovery-Related Relief [ECF

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No. 110].
I.

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The Court GRANTS in part and

APPLICABLE LAW

In response to a request for production of documents under

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Rule 34 of the Federal Rules of Civil Procedure, a party is to

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produce all responsive documents in the party’s “possession,

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custody, or control.”

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required to produce a document that is in the possession of a

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nonparty entity if the party has the legal right to obtain the

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document.

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1995).

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the legal right of the responding party to obtain documents from

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other sources upon demand.

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7 James Wm. Moore, et al., Moore’s Federal Practice, § 34.14[2][b],

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at 34-75 (3d ed. 2011) (footnote omitted).

Fed. R. Civ. P. 34(a)(1).

A party may be

Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal.

The term “control” is broadly construed, and it includes

Id. (quotation and citations omitted);

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“[W]hen a response to a production of documents is not a

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production or an objection, but an answer, the party must answer

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under oath.”

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§ 34.13[2][a], at 34-57 (footnote omitted); see id. § 34.14[2][a],

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at 34-73 (footnote omitted); see also Schwartz v. Marketing Publ’g

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Co., 153 F.R.D. 16, 21 (D. Conn. 1994) (citing cases establishing

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that the absence of possession, custody, or control of documents

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that have been requested must be sworn to by the responding party).

7 James Wm. Moore, et al., Moore’s Federal Practice,

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II.
A.

DISCUSSION

Order Directing Further Responses

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1.

Missing pages

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Based on the documents produced by Defendants, the Court finds

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that Vallery’s arguments are without merit.

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summary provided to Vallery is complete; Plaintiff mistakes fax

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pagination with the number of pages in the document.

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Vallery believes the inmate appeal log is incomplete, his suspicion

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is insufficient to refute Defendants’ assertion that the document

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is complete.

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Defendants to disclose missing pages from Exhibits A and D is

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DENIED.

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2.

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The Plaintiff’s Motion seeking an order instructing Defendants

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The employee history

Although

The Plaintiff’s request for an order directing

Diligence of search

to conduct a more diligent search is GRANTED in part.
With respect to document request 40, Defendant Brown asserts

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he has produced all documents in his current employer’s possession.

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Brown is to supplement his response to include any additional

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responsive documents in his possession, custody, or control

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reflecting the reasons for all of Brown’s transfers between

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08cv00095 DMS(RBB)

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prisons, not just his transfer to the California Institute for Men.

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If true, Officer Brown must also answer under oath that there are

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no other responsive documents in his possession, custody, or

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control.

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F.R.D. 150, 155 (D. P.R. 2010).

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See Vazquez-Fernandez v. Cambridge Coll., Inc., 269

As to document requests 4 and 6, Defendant Brown is to

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supplement his responses by providing documents concerning any

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inmate grievances filed against him for conduct similar to that

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alleged by Vallery.

If there are no further responsive documents

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for either request, Brown must indicate so under oath with

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corresponding specificity.

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For document request 5 seeking incident reports reflecting

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altercations between Defendant Brown and inmates, it is unclear

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whether the Defendant has produced all materials in his control

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because Defendants’ Third Amended Supplemental Responses are not

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before the Court.

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responses and also answer under oath.

For this reason, Brown is to supplement his

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Finally, with regard to document request 42, Vallery

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challenges Defendant Brown’s response relating to Calipatria’s

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investigation of Vallery’s claims against him.

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provide any additional documents to Plaintiff and must state under

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oath the absence of possession, custody, or control over further

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responsive documents.

The Defendant is to

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3.

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Vallery’s Motion for an order directing the Defendants to

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Document search parameters

search for the correct classes of documents is DENIED.
The Court ordered Defendants to respond to document requests 4
and 6 seeking inmate complaints against Officer Brown for conduct

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similar to that alleged in the Second Amended Complaint.

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gravamen of Vallery’s allegations is that Officer Brown committed

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sexual misconduct.

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responsive documents exist, as discussed previously, Plaintiff is

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not entitled to the expanded scope of production that he describes.

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The

Aside from stating under oath that no further

Additionally, the Court did not order Defendants to produce

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complaints from other law enforcement agencies in response to

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document requests 7, 13, 20, 25, and 31.

(See Order Granting in

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Part & Den. in Part 17-21, ECF No. 102.)

Vallery is not entitled

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to any further response.

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4.

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The Court DENIES Vallery’s request that the Court order “any

Declaration concerning document destruction policy

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CDCR employee” to provide a declaration confirming the existence of

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a policy regarding the destruction of prison records.

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requests 10, 17, 23, and 29, Plaintiff is not entitled to a

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declaration from an unspecified third party.

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Dee, Bell, Stratton, and Bourland must establish the nonexistence

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of complaints filed before 2006 in a statement made under oath.

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These Defendants are also to state under oath that the documents

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produced relating to complaints filed between 2006 and January 16,

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2008, are exhaustive.

For document

Even so, Defendants

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5.

Declaration as to actual document destruction

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Likewise, for document requests 10, 17, 23, and 29, the Court

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will not direct an unidentified third party to submit a declaration

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that the relevant inmate complaints against Defendants Dee, Bell,

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Stratton, and Bourland prior to 2006 were in fact purged.

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extent, Plaintiff’s request is DENIED.

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Defendants, however, are to state under oath that they do not have

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To that

The four responding

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possession, custody, or control over additional responsive

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documents.

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6.

Document search declaration

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Vallery also seeks an order directing “the person or persons

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who actually conducted the searches and reviews” to submit a

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declaration describing the searches.

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similarly DENIED; however all Defendants are to state under oath

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that all responsive documents have been provided.

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B.

Plaintiff’s request is

Independent Judicial Determination

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Based on the above, the Court DENIES Vallery’s request for a

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judicial determination as to the adequacy of Defendants’ document

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requests.

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III.

CONCLUSION

The Plaintiff’s Motion for Discovery-Related Relief [ECF No.
110] is GRANTED in part and DENIED in part.
IT IS HEREBY ORDERED:
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The Defendants are to serve Vallery with supplemental

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responses to these document requests, and, where

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appropriate, include statements under oath no later than

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December 2, 2011.

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eliminate sensitive personal information, such as social

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security numbers, home addresses, telephone numbers,

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family and health insurance information.

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2.

The records may be redacted only to

The hearing on Defendants’ Motion for Summary Judgment

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set for January 9, 2012, at 10:00 a.m. remains as set.

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Plaintiff may file a one comprehensive supplemental

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opposition by December 15, 2011.

The Defendants may

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08cv00095 DMS(RBB)

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reply to Vallery’s Opposition [ECF No. 79] and any

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supplemental opposition by December 30, 2011.

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DATE:

November 23, 2011

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cc:

__________________________________
RUBEN B. BROOKS
United States Magistrate Judge

Judge Sabraw
All Parties of Record

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K:\COMMON\BROOKS\CASES\1983\PRISONER\VALLERY095\Order re Disc.-Related Relief.wpd

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